Issues in Shared GovernanceLarry Catá Backer

W. Richard and Mary Eshelman Faculty Scholar & Professor of Law & International Affairs

Pennsylvania State University

Delivered January 26, 2017Johns Hopkins University School of Education

2800 North Charles Street Suite 230Baltimore, MD 21218

Background• Shared governance an essential part of the traditional organization of the university

• Grounded in a professionalized faculty with the monopoly of expertise on courses and degrees• Reinforced by tenure and its protections• Underlined by an administrator class (on the provost side) drawn largely from seasoned

academics well socialized in academic cultures• Education had a civic and economic objective• Governance sharing focused on an autonomous institutional organization of faculty with

plenary authority over courses, shared authority over programs and consultative authority over all other matters affecting the university

• Things are changing• Corporatization has increasingly changed administrative organization and shifted power away

from academic side of the house• Administrators are increasingly socialized within their own autonomous administrative cultures

and more detached form faculty• Faculty has been stratified among tenure, fixed term and adjunct with differing protections• These changes have affected the administrative structures of shared governance

Objectives• University administrators have a host of

techniques that can be deployed to undermine shared governance that are now reshaping the relationship between administration and formal faculty organizational structures

• This presentation will help to build a broader understanding of governance issues and models within academe and provide an overview of challenges to shared governance derived principally from a university model of faculty senate.

• Will speak through issues of shared governance through my top 10ish list of the emerging techniques that undermine shared governance • "

You Don't Have the Authority": Counting Down the Top Ten Techniques that Undermine University Shared Governance

• "We Abhor Retaliation But Expect Loyalty to Our Decisions" -- Techniques that Undermine University Shared Governance, the Honorable Mentions and the Deeper Issues they Reveal”

Top Ten Techniques to Undermine Shared Governance

• 1. "You don't have the authority."• 2. "We can't share that information."• 3. "Let's form a task force" • 4. "This is a technical issue that requires administrative expertise"• 5. "You have a conflict of interest"• 6. "Let us define the premises for you"• 7. "We consulted faculty; we reached out to specific faculty directly who we thought had expertise"• 8. "We consulted. . . we showed you the final draft shortly before roll out and asked your opinion"• 9. "You take too long. . . we need to do this now."• 10. "An outside agency is making us do this.”

"You don't have the authority"• Today this method has been

transformed in line with the bureaucratization of university administration. It is deployed in two very interesting ways.

• The first is to undermine the internal operation of representative faculty organizations. • I have heard of instances, from various

places in the United States, where middle level senior administrators have sought to challenge senate officer decisions about the conduct of the internal operations of the faculty organization.

• The second is to undermine the authority of such faculty organizations within the institution. This is the more traditional approach, but is now used in a new way: usually that involves disaggregating decision-making and asserting that with respect to certain elements of a once unified decision or problem, the faculty organization has no authority. • A good example involves curricular issues

where administrators might take the position that assessment (including assessment of content and pedagogy) is an administrative prerogative and falls outside the preview of the faculty organization.

“We can't share that information"• Some universities, especially those that

advertise their transparency tend to keep two sets of data--those that they will share with stakeholders and those that they will not.

• Because there is no transparent policy respecting what may be deemed secret, administrations are free not merely to include as secret anything they like, and to make secret and then release information in an arbitrary manner. • Other university may forbid faculties and others

from generating or harvesting data on their own. • This permits senior administrators to control not

merely the "ownership" of data but also control who may generate what sort of data.

• New Wrinkle—when senate administrators lock senators out of their own archives (here)

• Transparency has always been viewed as threatening to the "good order" and stability of institutions, especially as they have come to be reorganized more vertically in terms of the organization of administrative power.• And not just senior administrators. Middle level

managers--deans and campus leaders--are equally troubled by the notion that the information on which they base their decisions and policy choices might be available to those with a desire to assess their choices.

• With good reason, the ability to assess is deeply related to the power to hold accountable. Where such power might be asserted by "subordinate" stakeholders--faculty and staff--that would upend the "natural social order of hierarchy at the university, at least as far as administrators might be concerned.”

"Let's form a Task Force"• This ploy can be useful in two principal

circumstances. • In the first, it is an excellent tool for

end running university faculty leadership that is annoying or which senior administrators wish to marginalize.• The result is to ignore the standing

committees that usually undertake review• A variation is where such standing

committees get a short time to review and comment on the work of the task force

• In the second, it can shift control from the senate leadership to the administration. This can be accomplished either: • where the task force diverts consideration

of an issue from a faculty governance organization standing committee to a committee either managed by, or heavily populated with, selected administrators and what I have called pet faculty

• Alternatively, diversion occurs where an administrative task force, usually in the form of some sort of ad hoc aggregation of administrators and "others" take on for themselves a role otherwise traditionally shared because of some sort of articulated need.

"This is a technical issue that requires administrative expertise"• As university administration

become more complex, its bureaucracies have become more specialized. • Produces silo effect and contests for

"turf" among administrators • Also specialized knowledge centers

that • (1) tend to treat specialized knowledge

as currency to be accumulated and ”negotiated” for personal and unit advantage, and

• (2) not to be shared.

• Consequence: it is increasingly common to hear objections to faculty institutional involvement in policy determinations on the basis of the "fact" that faculty do not have "expertise". • Exception--in those technical instances in

which faculty do have expertise. • But in that case, the institutional faculty

organization is marginalized and administration reaches out directly to the technically useful faculty for direct input into their administrative decision and policy-making processes.

"You have a conflict of interest"• Notion that individuals with an

interest in a decision ought not to be able to participate in its determination. • At its limit, that suggests that faculty,

with an interest in the terms and conditions of its employment, ought to be considered to have an inescapable conflict of interest respecting practically every policy choice made by the university, including the choice and content of courses.

• Exception when faculty have necessary expertise (e.g., benefits)

"Let us define the premises for you"• Passivity in governance is a

virtue among one’s partners• Idea is that administrators

control the framing discussion and faculty senates participate in implementation • (e.g., “we have decided that your

leg must be amputated, you can chose the method)

• Few people, however, are trained to engage with premises, and many times, premises presented tend to be accepted without much discussion.

• When administrators are challenged, however, they tend to push back strongly--precisely because it is in the premises that the control of engagement lies.

• An excellent example touches on current engagement with benefits. • Administration, with very little discussion, have

managed, in many institutions, to frame the issue of benefits as one of cost containment. They have controlled the approaches to analysis and the scope of objectives of benefit policies.

"We consulted faculty; we reached out to specific faculty directly who we thought had expertise"• End running suggests

• Administrative ignorance of the difference among individual faculty

• Institutional organization of faculty

• Or expression of temptation to use one to end run the other.

• This technique is usually combined with others

• Example from a university where benefits issues have been quite contentious for a number of years:• University administrations have used a

combination of specialized task forces and routine leveraging of pet faculty or faculty with technical expertise.

• These efforts are then routinely characterized as faculty consultation sufficient to meet more than the minimum requirements of shared governance.

• But administrators do not get called on this, nor are there particularly damaging consequences to this potentially unethical behavior

"We consulted. . .we showed you the final draft shortly before roll out and asked your opinion"• Universities did not invent this ploy. It was

well practiced within the European Communities in the 1970’s and 1980’s.

• Administrators may keep a new policy completely in house through the completion of its final product. • At that point, and immediately before

finalization, the university may transmit the policy as a "draft" to the appropriate faculty governance unit for their opinion or for consultation.

• Usually the time for such review is very short. Immediately after receiving the consultation, the policy, rules or other object of the matter sent for consultation is promulgated

• Alternative:• Use of consultation, not to seek

input about the premises and approaches to policy or rule developed, but to seek any input that might expose error or administrative difficulties that might otherwise have been overlooked.

• In either case, the role of the faculty governance organization is reduced either to farce or technical assistance

"You take too long. . we need to do this now."• Administrators tend to be used to

efficient decision-making, even within interlocking networks of decision participants. • They tend to have little taste and

less tolerance, for the tedium of democratic governance in a representative organization. • But sometimes they might use

this to their advantage.

• Strategic use:• Delaying process to outlast the

term of a disfavored faculty leader• Withhold consideration of

important matters--benefits, general education, program shutdowns, engaged scholarship and the like, until the term of the disliked leader is up.• Justifies governance through ad

hoc groups

"An outside agency is making us do this."• Accrediting agency timelines and

the complexities of compliance with legal or regulatory requirements have been useful in shifting authority to managers and away form faculty.

And the Rest. . . . .Administrative Discretion and Retaliation "We abhor cultures of retaliation but we expect fidelity to decisions taken by administrators."• Key principal characteristic—the exercise of

administrative discretion against an individual motivated in whole or in part by personal animus rather than by institutional considerations, but hidden behind formal conformity to rules.

• Soft retaliation is fostered by an increasing gulf between university faculty and administrators about what retaliation means (see, e.g., here).

• Most universities now have fairly broad policies against retaliation. • whistle blowing (broadly understood including sometimes

harassment, discrimination and sexual misconduct claims or reporting) (e.g., Ohio State, Indiana, Maryland, Rutgers, Chicago (here and here), criticized here, here and here).

• Sometimes they are bound up in codes of conduct (see, e.g., here).

• Soft retaliation gives rise to a number of techniques that may not arise to formal breaches of faculty rights, but which effectively penalize faculty who do not conform. • The application of the techniques may be

subtle, but can touch on • The move toward civility (see here,

and here versus here) • The management of social media

discussion by faculty (see, e.g., here and here).

• The techniques do not undermine shared governance directly, but they do serve to chill faculty in the exercise of shared governance.

The Specter of Soft Retaliation• common forms of this soft

retaliation:• 1. Administrators use a version of

the "by the book" tactic at times used by public sector unions to pressure employers into workplace concessions (e g., here). In the administrative version deans may set an unrealistic "general rule" and then announce that waivers can be given upon application in individual cases.• 2. Related to the "by the book"

forms of soft retaliation are the use of discretion to deny permission.

• 3. Scheduling has been a classic tactic for soft retaliation. In some units it becomes an open secret that Professor X is being punished by senior unit officials because she always winds up with an odd schedule of classes.

• 4. The most important form of soft retaliation involves the perversion of the assessment process.

• 5. An important sub set of the assessment process--what I call socialization through soft rules. Let me give an example: a dean notes that attendance at weekly lunch time workshops is entirely optional, and then either negatively assesses those who don't attend or rewards those who do.

"Neutral assessment is the touchstone of our  academic cultures" • The topic of assessment, like retaliation, is much

broader than shared governance, but there are a number of techniques that might be understood as assessment-based but with an effect on shared governance. • A. Procrastination: "If I control authorization I control

you". This technique can be used by administrators who want to use their power indirectly to affect faculty productivity by affecting the timing and availability of unit support for faculty work.

• B. Taking back privileges and benefits: This technique is related to procrastination but involves the taking back of what was once given.

• C. Applying the Rules Evenly: Every faculty member has heard stories of the administrator who manages his or her unit through adoption of a policy of favoritism in the application of discretionary decisions.

At the 2015 AAUP Annual Conference: Remarks, "Undermining Academic Freedom from the Inside: On the Adverse Effects of Administrative Techniques and Neutral Principles" and PowerPoint of Presentation "Developing Social Media Policies for Universities: Best Practices and Pitfalls"

"I benchmark my policy choices."  • The logic of the herd runs deep in

academia. • academic institutions as prestige

factories• Group oriented conduct (the nail that stands

out will be hammered down)• Risk averse.

• So what one has, increasingly in this industry, is the adoption of the language of entrepreneurship and innovation within an organizational culture that fears innovation except as a lock step project conceived in committee and dedicated to the proposition that all academic institutions resemble each other (within their prestige caste).

• Organizations like CIC and AAU have become, over the course of these last several generations, as the stakeholder community of administrators who, among their own kind and privileging their own shared values as administrative officials, • Supplants internal stakeholders as the most

important sources of accountability and shared values among American universities

• Faculty no longer the most authoritative source of academic issues (de-rofessionalization and undermines main premise of 1915 AAUP Statement)

• How does this undermine shared governance? • Because they tend to serve, like trade associations,

as an alternative basis for policy and engagement, for industry discipline and norms, beyond the ability of any institution-bound stakeholder (faculty) to influence.

• Shared governance, in effect, is now shared among similar classes of university administrators, than among the various internal stakeholders of any single university.

Killing Shared Governance From the Bottom Up

• Denigrating Service

• "As you know, it was only because of my kindness and indulgence that I allowed you to accept a grant that afforded you a buy out of your courses last year. I should tell you that this really put me out; I had to go to the trouble of finding substitutes for you just so that you could do this research funded by the grant rather than teach. Reluctantly I also lost you because of your duties as an elected member of the University Faculty Governance Organization. There is nothing I can so about that. But I will insist that those duties are in addition to, and should be undertaken only after, you have complied with all of the service and committee work that I need to impose on you. That is your primary job. So you figure out how to fit in your University service; I have a unit to run. I still need you to fulfill your service responsibilities to this unit first, which includes advising students, serving as a peer observer of teaching for faculty, and serving on unit committees as I assign you. And be sure to remember that your year-end evaluation for me will be weighted heavily in favor of your unit service.”

• Middle level and unit administrators making effective university service difficult

Conclusion• In changing administrative landscape, it comes

as no surprise that shared governance is under stress

• Much of that stress is institutional and a reflection of the changes in academic organization and mission

• But shared governance can also be undermined by choices administrators make and faculty fail to resist

• Even successful resistance leaves the main issue—if shared governance is to survive, the institutions of faculty governance must change to meet the challenges of the new realities of the structures within which knowledge is produced and disseminated in the university